Public Domain Day 2010

Public Domain Day: January 1, 2010

Public Domain Day. January 1st every year. If you live in Europe, January 1st 2010 would be the day when the works of Freud and Yeats and hundreds of other authors ranging from Havelock Ellis to Zane Grey emerge into the public domain1 — where they are freely available for anyone to use, republish, translate or transform. You could copy the songs and photos, share the movies, make a digital library of the books. Your school could create an interactive volume of Yeats’s poems, or publish that cheap educational edition of Freud's Civilization and its Discontents. You could translate Ellis into French, even make a new film based on Grey’s classic Westerns. Or you could just send a copy to a friend — without asking permission or violating the law.

On the first day of each year, Public Domain Day celebrates the moment when copyrights expire. The films, photos, books and symphonies whose copyright term has finished become “free as the air to common use.” The end of the copyright on these works means that they enter the public domain, completing the copyright bargain. Copyright gives creators — authors, musicians, filmmakers, photographers — exclusive rights over their works for a limited time. The copyright encourages the creators to create and the publishers to distribute — that’s a very good thing. But when the copyright ends, the work enters the public domain — to join the plays of Shakespeare, the music of Mozart, the books of Dickens — the material of our collective culture. That’s a good thing too! It's the second part of the copyright bargain; the limited period of exclusive rights ends and the work enters the realm of free culture. Prices fall, new editions come out, songs can be sung, symphonies performed, movies displayed. Even better, people can legally build on what came before.

What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019. And wherever in the world you live, you now have to wait a very long time for anything to reach the public domain. When the first copyright law was written in the United States, copyright lasted 14 years, renewable for another 14 years if the author wished. Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two. Now? In the United States, as in most of the world, copyright lasts for the author’s lifetime, plus another 70 years. And we’ve changed the law so that every creative work is automatically copyrighted, even if the author does nothing. What do these laws mean to you? As you can read in our analysis here, they impose great (and in many cases entirely unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our entire collective culture.

“We are the first generation to deny our own culture to ourselves. Almost no work created during your lifetime will, without conscious action by its creator, become available for you to reproduce or build upon.”

What Could Have Been

It didn’t have to be this way. As you can read in our analysis of the subject, if we had the laws that were in effect until 1978, thousands of works from 1953 would be entering the public domain. They range from the James Bond novel Casino Royale and Arthur Miller’s The Crucible to the Watson and Crick Nature article on the double helix of DNA and Marilyn Monroe’s Playboy cover. Have a look at some of the others. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1981 might be entering the public domain! Imagine what the great libraries of the world — or just internet hobbyists — could do: digitizing those holdings, making them available for education, research, for pleasure and for creative reuse. If we did not go back that far, but merely went back to the copyright law as it was before 1998, we would be getting works 50 years after the death of the author.

For the works that are still commercially available, the shrinking public domain increases costs to citizens and limits creative reuse. But at least those works are available. Unfortunately, much of our cultural heritage, perhaps the majority of the culture of the last 80 years, consists of orphan works. They are not sold anywhere and they have no identifiable copyright holder. Though no one is benefiting from the copyright, they are unavailable: it is illegal to copy, redistribute, or publicly perform them.

Does all this mean that copyright is a bad system? Of course not. Copyright serves an important purpose in facilitating the creation and distribution of creative works. The basic principles of our copyright system are sound. But studies like the Gowers Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and recent economic studies of the effects of copyright protection all suggest that lengthy copyright extensions impose costs that far outweigh their benefits. In fact, economists who have modeled the ideal copyright term have uniformly suggested that it should be far shorter than it is right now. Some have suggested that it should be as short as 14 years. And every economic study has concluded if there are to be copyright term extensions, they should not be retroactive.

What can be done about all this? One obvious first step is law reform that would give greater access to orphan works. Authors and creators can also choose to license their work under more generous terms than standard copyright through Creative Commons licenses (for works like books, movies, music and art) or free and open source licenses for software. These open licenses create a privately constructed commons in which all can share freely. Fundamentally, though, the key is public education about the delicate balance between intellectual property and the public domain. That is the goal of our Center.

You can learn even more about the public domain by reading our Frequently Asked Questions page, from Professor David Lange's seminal 1981 article Recognizing the Public Domain or from James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008). Naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes.

You can read more about the 2010 Public Domain Day around the world at Communia's excellent site here.

Special thanks to our tireless and talented website guru Balfour Smith, and to Dr. John Inazu for invaluable research and writing.

1 One additional problem is that it is often very hard to determine if a particular work is in the public domain. The Open Knowledge Foundation list of public domain works to which we link is based on the assumption that the named author is the copyright holder and that the term is life plus seventy years.